I N S I D E T H I S

I S S U E :

Torts and Civil

Practice 1

Land Use & SEQRA 3

The Shell Game 5

Insight into

Immigration 6

Employment

Litigation Update 7

Animal Law

Update 8

Trusts & Estates

Update 9

Matrimonial

Update 10

Announcements 13

Classifieds 18

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THE VIEWS EXPRESSED IN THE ENCLOSED

ARTICLES ARE THOSE OF THE AUTHORS

AND DO NOT NECESSARILY REPRESENT

THE VIEWS OF, AND SHOULD NOT BE

ATTRIBUTED TO, THE SARATOGA

COUNTY BAR ASSOCIATION.

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J A N U A R Y F E B R U A R Y 2 0 1 6 L A W N O T E S V O L . X , I S S U E I

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EXAM BY NON-PHYSICIAN PERMITTED UNDER

CPLR § 3121

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Hayes v. Bette & Cring, LLC

(Lynch, J., 1/7/16)

The plaintiff’s suit for damages under Labor

Law § 240 included a claim of future lost wages

and reduced earning capacity. Supreme Court

(Reynolds Fitzgerald, J., Broome Co.) denied the

defendant’s motion to compel plaintiff to submit

to an examination by a vocational rehabilitation

expert. Exams by a “designated physician” are

permitted under CPLR § 3121, but in the Third

Department (Mooney v. Osowiecky, 1995) a

vocational rehabilitation assessment by

defendants was not permitted (unless plaintiff

planned to offer similar proof at trial). Directing

that Mooney should no longer be followed, the

Appellate Division reversed the trial court and

ordered the vocational rehab exam; concluding

that the broad scope of disclosure envisioned by

the CPLR and favored by the Court of Appeals

should be controlling and “the circumstances of a

case may allow such a demand even in the

absence of express statutory authority”.

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MUSIC FESTIVAL INJURY SUITE SURVIVES

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Bynum v. Keber (Rose, J., 1/7/16)

Plaintiff’s daughter suffered significant injuries

after ingesting a harmful substance at the Camp

Bisco music festival, which drew some 26,000

attendees in 2011. Claiming the defendant

promoters knew or should have known of the

widespread presence and use of illegal drugs at

the festival, plaintiff further alleged defendants

failed to provide adequate onsite emergency

medical services as required of a “mass gathering

permitee”. Supreme Court (Versaci, J.,

Schenectady Co.) denied defendants’ motion to

dismiss for failure to state a cause of action and

SARATOGA COUNTY BAR

ASSOCIATION

P.O. BOX 994

SARATOGA SPRINGS,

NEW YORK 12866

TEL & FAX:

(518) 280-1974

PATRICIA CLUTE

EXECUTIVE COORDINATOR

PCLUTE@SARATOGACOUNTYBAR.ORG

———————

M. ELIZABETH CORENO, ESQ.

EDITOR-IN-CHIEF

CHRISTOPHER MARNEY

MANAGING EDITOR

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the Third Department affirmed, except as to the

plaintiff’s fraud cause of action which could not

survive since there was no proof that a material

misrepresentation was made directly to plaintiff

or her daughter. In a separate opinion, the

Appellate Division reversed the trial court and

dismissed plaintiff’s claims against the Town of

Duanesburg and Schenectady County; shielded

by governmental immunity in the absence of a

special duty owed to Bynum.

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MORAL DUTY V. LEGAL DUTY

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Daily v. Tops Markets, LLC

(Lahtinen, J., 12/17/15)

Plaintiff’s decedent, after consuming alcohol

and drugs with several companions, passed out

and appeared to have trouble breathing. His

companions placed the unconscious decedent in

his own car, then drove the vehicle to the

defendant’s parking lot, after which they

reportedly told Tops’ employees that someone in

the parking lot needed emergency medical

attention. The companions then left the market

on foot; employees of the market took no action;

and the decedent died allegedly of the combined

effects of intoxication and hypothermia.

Supreme Court (O’Shea, J., Chemung Co.)

granted defendant’s motion to dismiss and the

Third Department affirmed. As decedent was not

a Tops customer, and his presence (and that of

his companions) on the defendant’s property was

not related to the market’s business,

“notwithstanding a moral obligation, Tops was

not under an affirmative legal duty to assist

decedent”.

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VICARIOUS LIABILITY

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Taylor v. The Point at Saranac Lake, Inc.

(Rose, J., 1/14/16)

(Continued on page 2)

TORTS AND CIVIL PRACTICE: SELECTED CASES FROM THE APPELLATE DIVISION, 3RD DEPARTMENT

TIMOTHY J. HIGGINS, ESQ.

Plaintiff’s husband was killed and she was hurt when their

snowmobile, crossing a public roadway that intersected a trail,

was struck by a car. The snowmobile tour was arranged

through the defendant resort (where the couple was staying)

but operated by a third-party which supplied the snow

machines and a tour guide. The summary judgment motion of

the defendant owners and operators of the resort was denied by

Supreme Court (Ellis, J., Franklin Co.) and affirmed in part by

the Third Department. Plaintiff’s vicarious liability claim

against the resort, premised on an ostensible agency

relationship between the resort and the tour guide, survived,

with the Appellate Division concluding that the resort’s

website and promotional materials “create a question of fact as

to whether plaintiff could have reasonably believed that” the

tour company had the authority to act as the agent of the resort.

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LABOR LAW §§ 240, 241

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Hebbard v. United Health Services Hospitals, Inc.

(Lahtinen, J., 1/14/16)

Plaintiff was part of a work crew repairing the defendant’s

parking garage and was injured when a stack of scaffold

frames (disassembled after being used earlier in the project)

tipped onto him when he attempted to move one. His Section

240 claim was dismissed by Supreme Court (Reynolds

Fitzgerald, J., Broome Co.) which was affirmed by the Third

Department; noting that the plaintiff and the frames were on

the same level and as such he was not exposed to the

“extraordinary elevation risks envisioned” by the statute. The

Appellate Division also agreed that plaintiff’s Section 241(6)

claim was viable, as it relied on Industrial Code Rule 23-2.1, a

specific safety provision directing that all such “building

materials shall be stored in a safe and orderly manner”.

Feilen v. Christman

(Lahtinen, J., 1/14/16)

Plaintiff fell off the roof (which he had just replaced) of the

defendant’s house, part of which was used for defendant’s bed-

and-breakfast business. His Labor Law suit against defendant

and her company was dismissed by Supreme Court (Mott, J.,

Ulster Co.) which found the defendant was entitled to the

statutory exemption from liability given to “owners of one and

two-family dwellings who contract for but do not direct or

control the work” of the person hired. Noting that partial use

of a home for commercial purposes doesn’t automatically

destroy the exemption, the Third Department affirmed

dismissal, concluding that the while the house had a “mixed

use”, the roof replacement done by the plaintiff was designed

to preserve the integrity of the home “and primarily benefitted

[Christman’s] clearly residential use of the premises”.

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SUMMARY JUDGMENT TO PASSENGER

WITH IMPAIRED DRIVER

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Norris v. Menard

(Egan, J., 1/14/16)

Plaintiff was seriously injured, including an above-the-elbow

amputation of his right arm, when the van in which he was a

passenger ran off a snow-covered road, slid down an

embankment and struck two trees. The defendant driver, who

had been in the plaintiff’s company for the preceding seven

hours at various locations including an ice fishing tournament

and a bar, ultimately plead guilty to imprudent speed and

driving with ability impaired by drugs. Reversing Supreme

Court (Ellis, J., Clinton Co.), the Third Department granted

summary judgment on liability to plaintiff, finding that

defendant “failed to offer a nonnegligent explanation for the

accident, allege that plaintiff contributed in any way to the

accident” or otherwise raise any triable issue of fact on

liability.

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BONUS OPINION: COURT OF APPEALS EXPANDS

SCOPE OF THIRD PARTY LIABILITY/DUTY OF CARE

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Davis v. South Nassau Communities Hospital

(Fahey, J., 12/16/15)

Staff at the defendant hospital gave a patient IV medications

without warning the patient that the drugs might impair her

ability to safely drive a car. The patient (a non-party in this

action) thereafter caused an accident with a bus operated by

the injured plaintiff. While noting that any “expansion of duty

is a power to be exercised cautiously”, the Court of Appeals

concluded that the hospital had a duty (to the plaintiff; as a

third party) to warn the patient of the dangers associated with

the medications administered to her. A key consideration in

duty analysis, per the Court, is meeting the changing needs of

society; quoting Judge Cardozo 100 years ago in MacPherson

v. Buick Motor Co.; that “the principle that the danger must be

imminent does not change, but the things subject to the

(Continued on page 11)

Timothy J. Higgins is a partner at Lemire, Johnson & Higgins, LLC in Malta, New York. His litigation practice includes all types of personal injury and wrongful death litigation, including representation of persons hurt in automobile and workplace (construction site) accidents, and medical malpractice. Mr. Higgins also represents and litigates on behalf of employers and municipalities in matters involving claims of employment discrimination and civil rights violations. Prior to joining the firm, Mr. Higgins was a

partner with Powers & Santola, LLP, in Albany, where he had worked since graduating from law school. Before beginning his legal studies and career, Mr. Higgins worked for ten years as a news reporter and sports broadcaster at WGY 810 AM in Schenectady as well as radio stations in Saratoga Springs and Glens Falls.

Mr. Higgins is regularly called upon by various bar associations and groups to lecture to other lawyers, on topics ranging from “The Basics of Civil Practice” to “Discovery for Experienced Litigators” to “The Art of Trial Advocacy: Demonstrative Evidence for Television Generation Jurors.”

J A N U A R Y F E B R U A R Y 2 0 1 6 L A W N O T E S V O L . X , I S S U E I P A G E 2

TORTS AND CIVIL PRACTICE, CONTINUED...

LAND USE LAW & SEQRA UPDATE

LIBBY CORENO, ESQ.

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EXPANSION OF PRE-EXISTING NON-CONFORMNG USE:

USE VARIANCE PROOF

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Joseph Nemeth v. Village of Hancock Zoning Board of

Appeals, 2015 NY Slip Op 75132(U) (3d Dep’t 2015):

Residential homeowners bought properties adjacent to a

manufacturing business that has been in existence since 1971.

In 1983, zoning was first introduced which zoned the area

residential and rendered the existing manufacturing business

on site as a pre-existing non-conforming use. In 2001, the

manufacturing company built an 800 sq. ft. by 1000 sq. ft.

addition for manufacturing purposes which, in a prior

decision, the Third Department had ruled was an unlawful

expansion of the use. The business then applied to the ZBA

for a use variance after the court issued an injunction

prohibiting the use of the addition. In order to succeed, the

applicant was required to show that “the land cannot yield a

reasonable return if used as it then exists or for any other

purpose allowed in the zone.” In reversing the ZBA’s grant

of the use variances, the court found insufficient proof that the

property could not yield a reasonable return if used as a

presently existing nonconforming use, i.e., as a manufacturing

facility without use of the addition for manufacturing

purposes. Moreover, even if the applicant had demonstrated

no reasonable return without the addition, it has the additional

burden of demonstrating that it could not realize a reasonable

return of any other use in the zone – which it wholly failed to

do.

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SHORT-TERM RENTALS UNDER

EXISTING ZONING

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Matter of Fruchter v. Zoning Board of Appeals of the

Town of Hurley, 133 AD3d 1174 (3d Dep't 2015)

A homeowner was engaging short term rentals (think

Airbnb) and was cited by the enforcement officer for running

either an illegal B&B or an illegal hotel. The issue was one of

pure legal interpretation for the ZBA and no deference was

given to the ZBA’s findings following its hearing. Here, the

Third Department found that the zoning code must be strictly

construed against the municipality and, because the owner's

activities fit neither of the B&B nor the hotel definitions listed

in the code, the ZBA interpretation was reversed. The court

noted that the rise in the "sharing economy" has left many

municipalities behind the curve when it comes to short term

rentals, but code amendments are going to be necessary.

Even then, however, local zoning may be tested as to the

ability to regulate the industry. Refer to the recent NYS

Multiple Dwelling Law changes which limit the renting out of

a Class A dwelling for periods shorter than 30 days.

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TELECOMMUNICATIONS ACT VS. LOCAL

SPECIAL USE PERMIT REGULATIONS

———————————

Orange County-County of Poughkeepsie Ltd Partnership v.

Town of East Fishkill, 2015 U.S. App LEXIS 19548 (2d Cir .

2015):

Verizon Wireless was seeking to place a wireless telecom-

munications tower in the Town of East Fishkill which required

a special use permit from the Town. Under the federal Tele-

communications Act (47 USC §332(c)(7)(B)), local municipali-

ties may regulate the placement of towers but cannot wholesale

prohibit telecommunication services. In order to demonstrate

that a municipality has unlawfully prohibited a telecommunica-

tion facility, the applicant must show “(1) a significant gap in

wireless service exists; and (2) the propose facility is the least

intrusive means available to close that gap.” Here, the Town

attempted to take the position that its gap was not ‘significant’

and therefore denied the special use permit. However, the find-

ing was contrary to radio frequency analysis, propagation maps,

and other data which indicated the significance of the gap.

Moreover, the applicant submitted topographic maps of all the

sites it had considered for placement of the facility and the only

site suitable was the premises at issue in the application. Sum-

mary judgment was granted under the TCA and the Town was

directed to issue the permit to Verizon. ——————————

LIMITATION ON THE “62-DAY RULE” FOR SUBDIVISION

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Matter of Lucente v. Terwilliger, 46 Misc. 3d 1217(A) (Sup.

Ct. Tompkins Co., 2015):

The applicant owns 48 acres of land in the Town of Ithaca (Continued from page #)

(Continued on page 4)

Libby Coreno, Esq. is a Director at Carter Conboy. She has been a practicing attorney in Saratoga Springs for nearly 12 years, providing counsel to a wide-range of clients, from individuals to regional businesses to Fortune 500 companies. Libby’s practice centers on real estate development; zoning and planning; and real property, municipal and commercial litigation. Libby is the President of the Saratoga County Bar Association and President of the Leadership Saratoga Alumni Board. She is the annual speaker on Case Law Updates for the Saratoga County Regional Zoning & Planning Conference and on Dynamics of Leadership for Leadership Saratoga. She can be reached at 518.587.8112 or lcoreno@carterconboy.com.

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LAND USE LAW & SEQRA UPDATE, CON’T

J A N U A R Y F E B R U A R Y 2 0 1 6 L A W N O T E S V O L . X , I S S U E I P A G E 4

(Continued from page 3)

and applied to subdivide the land into 47 residential lots, 2

lots to be given to Cornell University and one lot to be given

to the Town of Ithaca to become part of the Town park. In

2006, the Planning Board granted preliminary subdivision

approval and, in September of 2007, the applicant applied

for final subdivision approval. On that same day, the Town

Board enacted a moratorium on all subdivision approvals

and prohibited the applicant’s development of its property

which was extended until 2009. Once the Planning Board

could act once again, it noted two differences between the

preliminary plat and the final; namely the storm water run-

off plan had changed due to new NYSDEC regulations re-

quired a SEQRA review before approval. As such, the ap-

plicant submitted a revised Long Environmental Assessment

Form (EAF) but the Planning Board took no action for final

subdivision approval. In 2014 (5 years after the end of the

moratoria), counsel for the applicant demanded that the

Town issue the certificate of approval pursuant to Town

Law 276(8) due to the failure of the Planning Board to ap-

prove the subdivision within 62 days. In ruling in favor of

the Town’s refusal to issue the certificate, the Court noted

that Town Law 276(8) contemplates the completion of

SEQRA prior to the running of the 62 days under the statute.

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BINDING EFFECT OF SEQRA DETERMINATIONS ON

OTHER LAND USE DECISIONS

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Troy Sand & Gravel Co. v. Town of Nassau, 125 A.D.3d

1170 (3d Dep't 2015):

In 2003, Troy Sand & Gravel applied for a mining permit

from NYSDEC which acted a lead agency under the SE-

QRA review for all permits related to the quarry operation

(special use permit and site plan). Following a positive dec-

laration and the preparation of an environmental impact

statement, NYSDEC prepared a findings statement which

was unsuccessfully challenged by the Town. The Town

then attempted to reopen the environmental record and con-

duct its own assessment under SEQRA and the gravel com-

pany sought a declaration that Town was bound by all deter-

minations made in the NYSDEC SEQRA review and it was

not entitled to retain a professional consultant for the pur-

pose of reviewing any environmental issue already deter-

mined in the SEQRA process. While the Town was permit-

ted to make findings related to standards and criteria neces-

sary to make a determination on the special use permit, it is

without authority to gather additional environmental impact

information beyond that in fully developed record from

DEC's SEQRA review.

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RLUIPA PREVENTS VILLAGE’S LIMITATION

OF PROPERTY USE TO JEWISH HOLIDAYS

———————————

Matter of Septimus v. Board of Zoning Appeals for the

Incorporated Village of Lawrence, 2015 NY Misc LEXIS

4641(Sup. Ct. Nassau Co., 2015):

Bais Medrash operates a synagogue in the Village of Law-

rence which is subject to significant restrictions including no

vehicular traffic on Friday nights and Saturday and no use of

the premises during week expect on Jewish holy days. After

a number of years of operating, Bais Medrash applied to raze

a structure on one of the lots, slight expand the synagogue

and build a parking lot. The BZA decided to grant the relief

and rescinded the covenants against use of the synagogue

during weekdays for a trial one year period. Several of the

neighbors opposed the relief granted and sought to appeal the

BZA’s decision. After the court addressed the issues raised

by the petitioners, it specifically noted that religious organi-

zations in NY are entitled to special treatment related to land

use and zoning. Moreover, the covenants previously imposed

directly restricted the free exercise of religion in violation of

the Religious Land Use and Institutionalized Persons Act of

2000 (RLUIPA) which provides that “no government shall

impose or implement a land use regulation in a manner that

imposes a substantial burden on the religious exercise of a

person, including a religious assembly unless the government

can demonstrate that the burden is in furtherance of a compel-

ling governmental interest and is the least restrictive means of

furthering that interest.”

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ZONING PRE-EMPTION OF LAKES OWNED

BY NYS IN ITS SOVEREIGN CAPACITY

———————————

Matter of Plattsburgh Boat Basin Inc. v. City of Platts-

burgh, 2015 NY Slip Op 25350 (Sup. Ct. Clinton Co.,

2015):

In 2013, the City of Plattsburgh adopted a local law to

regulate the placement of moorings within Lake Champlain.

The petitioners are a local marina located on the shore of

Lake Champlain and within the City limits. The petitioners

sought to invalidate on the local law on several grounds and,

most notably, that the law was in violation of the NYS Navi-

gation Law which restricts municipalities from regulating

the anchoring or mooring of vessels in lakes which NYS

hold title to in its sovereign capacity. As it so happens, Lake

Champlain is one of those lakes and therefore the City’s

mooring must be vacated as exceeding its authority under

the Navigation Law.

THE SHELL GAME MICHAEL FRIEDMAN, ESQ.

“Charity is no part of the legislative duty of the government.”

- James Madison

In a footnote to the 2016 Budget Request of the Judiciary,

Chief Administrative Judge Lawrence K. Marks wrote: “There

is also the currently unknown cost of a salary adjustment for

judges that will be recommended by the Commission on

Legislative, Judicial and Executive Compensation, to take

effect on April 1, 2016. The recommendations of the

Commission with respect to judicial compensation are due by

December 31, 2015, and therefore the cost of the recommended

adjustment is not now known and is not included in this

request. If necessary, the Judiciary will submit a supplemental

budget request to cover the cost of the April 2016 salary

adjustment.” OK, so the $2.13 billion Judiciary Budget request

for 2016, the largest per capita in the United States of America,

might be a tad short of the actual cost, and Judge Marks just

doesn’t know how much that would be.

Or does he? A fortnight after he released his proposed budget

and nine days before the Commission issued its report, Judge

Marks told the press, “This commission is finally compensating

judges for the intolerable 13-year period in which judges didn't

receive a single cost of living adjustment.” Maybe he knew

something we didn’t know. After all, the Commission adopted

his recommendations virtually verbatim. Here’s the thing.

Under the law, whatever the Commission says about pay raises

takes effect automatically on April Fools’ Day unless the

Legislature says otherwise.

According to their report, the increase will cost just “19 one-

thousandths of one percent (0.019%) of the overall state

budget.” A mere bagatelle. They estimated the increase to be

$26.5 million in the first year. Judge Marks wrote in his

undated submission to the Commission, “A judicial pay

adjustment of 16.7%, as urged herein to establish parity with

the federal judiciary, would cost the State approximately $35.56

million annually. Adoption of the Judiciary’s proposal to

reform certain pay disparities (see section V) would add

approximately $3 million annually.” Their source for that?

They don’t say. Sure, they footnote virtually everything else,

but not that claim. But let’s just assume the Commission and

Judge Marks are correct in their estimates, putting aside that

there will be another 45% increase ($38.56 million versus $26.5

million) in 2018, that would make our 2016 judicial budget

about $2.156 Billion and would make the judicial budget

increase over 2015 $74.1 million. This increase is more than

50% higher than Judge Marks told the Legislature in the

“proposed” 2016 budget. And just what does one get for

$2.156 Billion? Among other things, the yearly exports of

Aruba or how much Magic Johnson and some investors paid for

the Los Angeles Dodgers.

This neat trick gives our legislators the ability to deny voting

for any tax increase while massively increasing the Judicial

Budget. Just so long as Judge Marks says, “I don’t know how

much more this will cost,” and the Commission tells us, “we

think it will cost $26.2 million,” then who is the wiser?

How did we get here? That is hilarious. The Commission on

Legislative, Judicial and Executive Compensation has its final

report and an “Appendix” from Judge Marks that has all kinds

of backup data. The Appendix does not describe the final

increase, but it certainly gives lots of statistics in its 258 pages

of gobbledygook. For example, did you know that in 2011,

New York State’s trial judges ranked 11th highest out of 50

states in salary? By 2015 according to the National Center for

State Courts, we were 8th on the hit parade. So, how do you

justify a stupefying $35+ million per annum pay increase? You

“adjust for cost of living” whatever that means. It brings our

judges down to 47th place, although doesn’t cost of living

include the taxes New York imposes in part based on the

Judicial budget? This is the same kind of junk science that

caused the Office of Court Administration to brag that for every

dollar of the $100 million we pay charities and not-for-profits

for civil legal services, our economy gets $9 in return. If we just

gave them $2.15 billion, we’d all live like kings, eh? To justify

the increase, Judge Marks in his Appendix compares our judges

to, among others, top partner salaries in New York City

(minimum $455 per hour, thank you very much), the head of

(Continued on page 11)

Michael Friedman has been practicing law for over 30 years and has maintained a private practice since 1981. He is the recipient of numerous awards such as the Distinguished Service Award from the Legal Aid Society of Northeastern New York, the Albany County Bar Association President’s award, the Albany County Bar Association Pro Bono Award, and the New York State Bar Association President’s Pro Bono Service Attorney Award. Mr. Friedman is the author of numerous articles on matrimonial practice including The Case for Parental Access Guidelines in New York and the Case for Joint Custody in New York for the New York State Bar Association’s Family Law Review, Pensions and Retirement Plans: Valuation Strategies for the New York Domestic Relations Reporter and a monthly matrimonial article for the Albany County Bar Association.

Mr. Friedman has served as President of the Albany County Bar Association and was a member of the House of Delegates of the New York State Bar Association. He practices before all local Family and Supreme Courts and has argued numerous matrimonial cases in the Appellate Division, Third Department and New York’s highest court, The Court of Appeals. He has been a frequent judge for the Dominick L. Gabrielli National Family Law Moot Court Competition. He is also a frequent lecturer and writer for the New York State Bar Association Family Law Section’s Continuing Legal Education programs.

J A N U A R Y F E B R U A R Y 2 0 1 6 L A W N O T E S V O L . X , I S S U E I P A G E 5

noncitizens alike, provided that they have sufficient ties to the

United States.4 So, noncitizen Muslims who are presently in

the United States would seem to be protected. Those outside

the United States, perhaps not so much.

What about the “equal protection” clause in the Fourteenth

Amendment? The Fourteenth Amendment forbids the states

from denying any person “equal protection” under the law. In

1886, the Supreme Court held that the “equal protection” clause

is “universal in [its] application, to all persons within the

territorial jurisdiction [of the United States], without regard to

differences of ... nationality.”5 More recently, in 1954, the

Supreme Court held that this guarantee of equal protection is

implicit in the Fifth Amendment’s “due process” clause.6

So, the Fifth Amendment limits the federal government, and

the Fourteenth Amendment limits the states. Again, it would

seem that noncitizen Muslims who are in the United States are

generally entitled the same protection under the law as U.S.

citizens. But those outside the United States, that’s much less

clear.

What about other grounds? Some constitutional scholars

have argued Mr. Trump’s ban on Muslims would violate the

First Amendment’s “establishment” clause. That provision

forbids Congress from establishing an official religion. The

argument goes that Mr. Trump’s policy would essentially

require that the federal government make a determination as to

who is really Muslim in order to know who to exclude from our

borders, and that the “establishment” clause prevents the

government from making these types of decisions.

If Congress were ever to take such a drastic step, and the issue

thereafter reached the courts, it would be interesting to see what

would then happen. The courts are required to apply “strict

scrutiny” to all government actions that tend to discriminate on

the basis of a “suspect class” (e.g., race) or upon a fundamental

right (e.g., religion). Because strict scrutiny would apply, the

courts will presume that such a law is unconstitutional, and the

burden will then be on the government to provide a “strong

basis in evidence” that shows the law achieves a “compelling”

national interest and that the law is “narrowly tailored” to

accomplish that goal.

Surely protecting against terrorism is a compelling national

interest, but would such a law be the least restrictive means in

order to do so? I’m not convinced.

One of the most famous Muslims (perhaps in the world)

recently said of Mr. Trump’s inflammatory remarks, “True

Muslims know that the ruthless violence of so called Islamic

Jihadists goes against the very tenets of our religion.” Going

on, this individual said that he believes “that our political

leaders should use their position to bring understanding about

the religion of Islam and clarify that these misguided murderers

have perverted people’s views on what Islam really is.” Who

was that? Muhammad Ali (a/k/a Cassius Clay). I could not

agree more. Instead of Congress passing legislation to prevent

Muslims from entering the United States, we should simply

(Continued on page 14)

Every once in a while I need to remind myself of who my

audience is and write a piece on the law (as opposed to my

musings purely about the politics of immigration). So, here we

go.

In the wake of the tragic events in both Paris and San

Bernardino, Donald Trump raised the rhetoric, proposing not

only to deport 11 million undocumented immigrants, but to also

ban Muslims from entering the United States. In the first

television advertisement of his campaign, the narrator of Mr.

Trump’s ad states that Mr. Trump is “calling for a temporary

shutdown of Muslims entering the United States, until we can

figure out what’s going on.” 1 (This verbiage was somewhat of

a back-peddling from his earlier remarks for a “total and

complete shutdown” of Muslims entering the United States.)

New Jersey Governor Chris Christie also has a plan to bar

Syrian refugees for the sake of national security.

In my opinion, and I am sure there are some of you who

would disagree with me, Mr. Trump’s plan is un-American,

inflammatory, and frankly stupid. But is a ban on Muslims

entering the United States legal? Maybe, but I think the courts

would have a field day with it.

Right out of the gate, most constitutional scholars loudly

stated that a ban on Muslims from entering the United States

would discriminate against a class of people based on their

religion (not to mention to punish an entire class of people who

have done nothing wrong). Certainly such a ban would violate

constitutional guarantees of “due process of law” and “equal

protection” for Muslim-Americans.

But what about those who are not U.S. citizens?

I don’t think anyone would argue that the United States, as a

sovereign nation, has the authority to decide who may enter the

country, and the conditions for entry by those who seek it.

Most of this power lies with Congress, in its “plenary” power to

control admission to the United States, how long a noncitizen is

able to stay, and under what circumstances.

The Fifth Amendment of the U.S. Constitution provides that

no person shall be “deprived of life, liberty, or property,

without due process of law.”2 The “due process” clause does

not “acknowledge...any distinction between citizens and

resident aliens.”3 This protection extends to U.S. citizens and

David W. Meyers, who joined his father at Meyers and Meyers, LLP in 1997 after a decade as an executive assistant to United States Senator Alfonse M. D'Amato, focuses primarily on family- and business-related immigration matters, commercial litigation, residential and commercial real estate transactions, trusts and estates, and general and

appellate practice.

J A N U A R Y F E B R U A R Y 2 0 1 6 L A W N O T E S V O L . X , I S S U E I P A G E 6

EMPLOYMENT LITIGATION UPDATE SCOTT PETERSON, ESQ.

———————————

CHANGES TO NEW YORK HUMAN RIGHTS LAW

———————————

On January 19, 2016, various laws that were part of the

Women's Equality agenda in New York went into effect.

Below are some highlights:

Reasonable accommodations for pregnancy-related

conditions (this is significant and is not currently required

under federal law (absent a disability));

Prohibition of sexual harassment applies to all employers

regardless of size (used to require four or more

employees);

Attorneys' fees recoverable in sex discrimination lawsuits;

Prohibits discrimination based upon "familial status" (i.e.,

having kids);

Vague language giving employers excessive discretion is

removed from New York’s Equal Pay law (previously it

was relatively easy for an employer to come up with a

reason for paying women less than men performing equal

work);

300% damages available for willful violations of the Equal

Pay law;

Employers cannot prohibit employees from talking about

salary information.

———————————

EMPLOYMENT RELATIONSHIP

———————————

In re Exotic Island Enterprises

(3rd Dept. 1/14/16)

The issue of whether someone who performs services is an

employee or independent contractor is often unclear, and can

have a significant financial impact on a business.

At issue in Exotic Island Enterprises was the classification of

exotic dancer employees for the purpose of unemployment

insurance. The NYS Department of Labor investigated the

company and determined that exotic dancers were employees

for the purpose of unemployment insurance requirements. The

company owners appealed, and the Third Department Affirmed,

finding that the dancers were employees, rather than

independent contractors.

The Court noted that the primary consideration in whether an

“employment” relationship exists for the purpose of

unemployment insurance is whether the employer “exercised

control over the results produced or the means used to achieve

the results.”

Factually, the Court noted that testimony confirmed that the

venues “attracted new dancers” by advertising in trade

publications and newspapers, determined appropriate schedules

and exercised final discretion as to whether a dancer was

sufficiently “fit” to perform. The venues set pricing, created

nightly schedules and provided the stage and supporting

equipment allowing the dancers to perform. Perhaps most

tellingly, the accountant for the businesses testified that they

carried workers’ compensation insurance coverage for the

dancers. Consequently, the Court determined that the decision

by the DOL was supported by substantial evidence. Affirmed.

———————————

HOSTILE WORK ENVIRONMENT

———————————

Dotel v. Walmart Stores, Inc.

(2nd Cir. 1/24/16).

Plaintiff, a former Walmart employee, brought suit against the

company alleging sex discrimination, hostile work

environment, retaliation and intentional infliction of emotional

distress. Her claims were dismissed by the District Court, and

on appeal the Second Circuit affirmed.

The Court noted that while the plaintiff alleged that her

supervisor engaged in daily abusive insults and verbal

harassment of the Plaintiff and her female co-workers, there

was no evidence to actually support this claim. Among other

things the court considered complaints that Plaintiff had made

contemporaneously with the alleged misconduct, none of which

mentioned gender based comments by her supervisor.

Plaintiff likewise alleged that her supervisor stated that

“women are good for nothing”, however the Court determined

that this statement, in isolation, was not “sufficiently severe or

pervasive to alter the conditions of [Plaintiff’s] employment

and create an abusive working environment.” Once again the

“stray comment” defense leads to an award of summary

judgment.

Scott Peterson is the founding partner at D’Orazio Peterson, which was opened to provide representation to individuals in employment and serious injury matters.

Mr. Peterson received his law degree from Albany Law School, where he served as a Managing Editor on the Albany Law Journal of Science and Technology. Prior to opening his firm, he worked for two Albany- based law firms, where he focused his practice on litigation in the areas of construction, malpractice, employment and serious injury.

Mr. Peterson has represented clients in State and Federal courts throughout New York State, has been published in several publications including the New York Law Journal, and has frequently provided commentary for local and national media outlets. He currently serves on the Executive Committee of the New York State Bar Association Trial Lawyers Section.

J A N U A R Y F E B R U A R Y 2 0 1 6 L A W N O T E S V O L . X , I S S U E I P A G E 7

As you may know, I have been writing this article for some

time for the Albany County Bar Association and I look forward

to more frequent publication in our Saratoga County Bar

Newsletter. Since a large portion of my “animal law” practice

has spun into representing non-profit organizations of all types I

will also be devoting a portion of this article to updates in the

non-profit legal world to add some breadth to the information

provided.

———————————

NY GOVERNOR VETOES NONPROFIT-ONLY WORKPLACE

VIOLENCE MANDATE

———————————

New York Governor Cuomo vetoed a bill that would have

imposed costly workplace violence assessments and mitigation

programs on nonprofits. He did so on the grounds that the bill

was vague and improperly singled out nonprofit contractors for

the new burden that did not apply equally to for-profit

contractors. Earlier this year, the New York Senate and

Assembly passed the measure, which would have defined as

“public employer” any nonprofit that receives at least 50

percent of its budget from municipal, state, or federal sources.

Affected nonprofits would have been liable for assessments,

training, and physical/managerial alterations to prevent third-

party workplace violence instances on their premises in the

same manner as required at government facilities.

———————————

ADDITIONAL INFORMATION NOW REQUIRED TO BE

DISTRIBUTED BY PET DEALERS

———————————

Additional information now required to be distributed by pet

dealers.

If you represent any pet dealers, be aware that last month

Gov. Cuomo signed into law a bill that will require pet dealers

to provide consumers with instructions on how to care for small

animals when purchasing hamsters, chinchillas, guinea pigs,

gerbils, rabbits, mice, rats and other creatures.

The bill requires the pet seller to file a copy of its instruction

manual annually with the state Department of Agriculture and

Markets and this will most likely be on the Department’s

checklist for inspection compliance.

The bill will take effect in 90 days, and according to

Assemblywoman Linda Rosenthal (D- Manhattan) said that

another benefit is that it will "reduce the number of devastated

children who must deal with the preventable death of their

beloved animal simply because of improper care."

———————————

FLORIDA COURT STRIKES DOWN “DANGEROUS DOG”

STATUTE AS UNCONSTITUTIONAL

———————————

In a much anticipated (at least to those of us that try these

types of cases) December 14, 2015 decision and order1, a

Florida judge has found that Florida’s version of NYS

Agriculture and Markets §123, so called, “Dangerous Dog”

statute is unconstitutional.

The facts were undisputed. On June 4, 2015 the defendant’s

dog “Padi” bit a small child on the ear. This injury required

emergency room care, including stiches. As a result Padi was

seized by Animal Control. A mere 14 days later, Animal

Control issued a final notice of violation of the Florida Statute

at issue. That statute mandates the destruction of Padi upon

mere proof that the bite caused by Padi resulted in a severe

injury as defined in the statute. The defendant invoked his right

to an administrative hearing to argue that sole issue. Some

procedural steps were then taken by the parties to bring the

issue before the court of whether or not the statutory irrelevance

or unavailability of affirmative defenses such as provocation of

the animal rendered the statute unconstitutional.

The court found the statue unconstitutional in that it vested

unfettered discretion in the administrative enforcement of the

statute and violated the defendant’s due process rights under the

Fourteenth Amendment as it relates to the taking of the

defendant’s property. Padi was released to his owner without

further proceedings.

———————————

FBI WILL NOW TRACK ANIMAL CRUELTY CASES

———————————

Beginning in January 2016 the FBI will track animal cruelty

cases nationwide as the bureau does with other major areas of

criminality. Prior to this change animal cases fell under “other”

(Continued on page 11)

J A N U A R Y F E B R U A R Y 2 0 1 6 L A W N O T E S V O L . X , I S S U E I P A G E 8

Jonathan Schopf is a solo practitioner in Clifton Park, New York and is a graduate of Albany Law School. Mr. Schopf is the Past-President of the Rensselaer County Bar Association. His primary practice involves advising municipal, institutional and business clients in tax certiorari litigation. He also advises traditional business and non-profit clients in day-to-day

transactional matters including real estate and corporate management. Mr. Schopf represents such clients at trial in both state and federal courts as both plaintiff and defendant in litigation involving tax certiorari, insurance coverage, commercial transactions, and general litigation.

A frequent lecturer on legal issues related to animals, he maintains a niche practice in the field of animal law. In this unique boutique practice area, Mr. Schopf advises clients who operate animal related businesses such as farms, kennels, veterinary, animal service and not-for-profits animal rescues as to legal issues which are unique to their business.

He is admitted to practice in all courts in the State of New York, the Commonwealth of Pennsylvania, the United States District Court for the Northern District of New York, the United States Court of Appeals for the Second Circuit and the Supreme Court of the United States. He has litigated numerous cases to verdict in courts throughout New York.

ANIMAL LAW UPDATE JONATHAN G. SCHOPF, ESQ.

———————————

EPTL ARTICLE 8

———————————

Estate of Chamberlin (3rd Dept., 1/7/2016)

In an EPTL Article 8 proceeding to remove investment

restrictions of a decedent’s will, the Appellate Court overturned

a Washington County order which denied the removal of

investment restrictions. The Decedent’s Last Will & Testament

provided for several charitable bequests including sizable

bequests to three local churches. The Decedent’s Last Will &

Testament stated that these bequests would be held by the

recipients, in trust, and invested in only federally insured bank

accounts and/or government bonds with the resulting income

used for maintenance of church property. As you would expect

in this economy, the bond and bank yields ain’t what they used

to be. There was little to no income from the investments,

arguably frustrating the purpose of the bequests. The Petition

was denied in Surrogate’s Court due to a failure to show an

unforeseen change in circumstances, a standard that common-

law equitable deviation cases have required. Statutorily

speaking however, and in particular in the case of charitable

trusts, proving an unforeseen change is not required. Citing

EPTL 8-1.1(c) directly, the Appellate Division determined that

circumstances (the lowering of interest rates) had changed

rendering the investment restrictions in the Will impracticable

to comply with its purpose, that is, to generate funds to assist in

church maintenance. The change that the Petitioners requested,

and which the Court ordered, allows for a modification in the

investing restrictions so that investments can be made pursuant

to The Prudent Investor Act (EPTL 11-2.3).

———————————

DUE EXECUTION, CAPACITY, INFLUENCE AND FRAUD

———————————

Will of Isabelle Moses-Pisacano

(Nassau Cty, 2013-374799A)

This case is not particularly interesting in terms of its facts

however it provides practitioners with a succinct summary of

the burdens of proving lack of due execution, lack of

testamentary capacity, undue influence and fraud (i.e. the four

horsemen of estate administration litigation), as well as the

burdens of a movant seeking summary judgment dismissing

those claims. The facts are basic. The two sole distributees of

the Decedent’s estate (her two sons) respectively serve as

proponent and objectant of Mom’s will. The will disinherited

the objectant entirely with the proponent being named executor

and receiving an inheritance. The Decedent’s will specifically

disinherited the objectant. A will nine years earlier did the

same. The execution was supervised by counsel and all of the

witnesses attested that the decedent was of sound mind. In

short, the proponent met all of his obligations and the objectant

failed his. The objectant was not for a loss of words in his

papers however providing the court with 75 non-sworn

paragraphs claiming everything from the will being a “sham” to

it containing “ghost written gobbledy-gook” which is quite

impressive, in particular if you use it for a triple-word

score. No, the objectant’s papers were neither affidavits nor

sworn and for that reason alone, the Court notes it could and

should have granted proponent’s motion for summary

judgment. The Court was nice enough to mention it would

grant the motion because the objectant did not meet any of his

burdens as well.

———————————

EXCESSIVE LEGAL FEES

———————————

Estate of Ziegart (Bronx County, 2013-2391/A)

In an uncontested proceeding to judicially settle the account

of executor where the residuary beneficiaries are four charitable

organizations, the Bronx Surrogate’s Court reduced that portion

of legal fees attributable to the sale of real property which it

determined to be excessive and unwarranted. Surrogate’s Court

has the authority, sua sponte, to determine counsel fees

regardless of whether objections have been filed in the

accounting proceeding. Here, counsel for the executor

provided the Court with two affirmations of legal services. The

first, dealing with all non-real estate work, totaling $16,351.84,

was approved by the Court in full. The second, dealing entirely

with the sale of decedent’s cooperative apartment contained

39.5 hours billed at an hourly rate of $295.00. In total, the legal

cost of the real estate piece was $11,917. The Court, in

evaluating the actual billing entries, found that over 19 hours of

billed time consisted of actions that were executor functions

such as checking on and clearing out the apartment. The

attorney fee was accordingly reduced by $5,708.25.

J A N U A R Y F E B R U A R Y 2 0 1 6 L A W N O T E S V O L . X , I S S U E I P A G E 9

Mr. Kubikian joined the Herzog Law Firm as a senior associate in 2015. He concentrates his practice in the areas of Estate Planning, Medicaid Planning, Estate Administration, Matrimonial Law and Guardianships. David graduated from New York Law School with a Masters of Law in Taxation in 2010. He obtained his J.D. from Brooklyn Law School in 2005 with a concentration in

Trusts & Estates and Tax Law. He graduated from Hofstra University in 2002 with a Bachelor's Degree in Finance.

David is very involved in the community and teaches continuing education classes on matrimonial law, estate planning, administration and litigation in both the Saratoga Springs and Shenendehowa School Districts.

David is a member of the New York State Bar Association, Elder Law and Trust & Estates sections, the Saratoga County Bar Association, the Armenian Bar Association, the Malta Chapter of BNI, the Malta Business Professionals Association, the Southern Saratoga Chamber of Commerce, and the Estate Planning Council of Northeast New York.

TRUSTS & ESTATES/ELDER LAW UPDATE DAVID A. KUBIKIAN, ESQ.

———————————

THE VALUATION FICTION OF PROFESSIONAL PRACTICES—

PART 1

———————————

Professional practices suffer a multitude of valuation

maladies when considered for equitable distribution purposes in

a matrimonial action. Assuming proper valuation dates have

been set, an assessment of a closely-held professional

enterprise, law for example, is rife with subjectivity.1 Part of

the problem is that the attorney cannot sell his license or his

degree, and he has significant ethical and legal disclosure

problems.2

There are a number of methods used in valuing a closely-held

professional practice. The most common in New York is the

income approach.3 Simply stated, the income approach values

the present value of future benefit expectation. The future

earnings are risk-assessed to give the “investor” the appropriate

rate of return to reflect the risk of investment and the resulting

rate of return subject to a capitalization rate.4 If a practice has a

history of income, this will be heavily relied upon, but the

courts retain immense discretion to accept, reject or modify a

valuation appraisal. In theory, this method is relatively

easy to apply. One of the most challenging aspects of valuing

a professional practice is determining the good will of the

business and the personal goodwill associated with the

practitioner, in other words financial “value.”5 Interestingly,

there is no specific definition of goodwill as to a business.

Simply, it is intangible.6 The term “good will” is generally

defined as: “that intangible asset arising as a result of name,

reputation, customer loyalty, location, products, and similar

factors not separately identified”. One commentator has

defined it as the soul of a business.7 Naturally, confusion

reigns, subjectivity rears its ugly head, and evaluators span the

horizon as to their emphasis of what goodwill means in a

particular case.8

An important distinction must be made between business and

personal goodwill. Although difficult, goodwill is much easier

to define with a business because of its existence, past earnings,

customer loyalty, stability, and general reputation.9 In a

commodity such as Maxwell House Coffee, the concept is

apparent. It has market presence, it provides a product

consumers want, it has historical sales, instant name

recognition, and a good reputation. Perhaps the most important

component of a business is its reputation in assessing its

goodwill. Likewise, if you are a sole practitioner in the legal

profession, your reputation for excellence should provide a

competitive edge in the market place. Since a rational

purchaser of services wants to maximize the value of the

bargain he or she receives,10 the professional in turn should

become more successful,11 as referrals should increase. In other

words, nothing breeds success like success. In the context of

divorce, this generally means money per equitable

distribution.12

Thus, the purpose in valuing a professional practice is to

garner an opinion as to what its potential future earnings will

provide the owner. Unlike Maxwell House Coffee, which is

publically traded on the stock exchange and its value

determinable via its stock price, no such medium exists for a

professional practice. Any value it has would be the price it is

sold at in a fair market exchange. In a divorce, the mechanisms

of the market to determine a fair and equitable price are

absent.13

There is no one way to value a professional practice.

Although speculation abounds, any reasonable approach based

upon Rev. Rul. 59-60 would probably be acceptable to most

courts.14 What is critical, however, in determining “goodwill”

is the selection of the proper discount rate and the derivation of

the appropriate capitalization rate (cap rate).15 A proper

valuation is meaningless without the proper rate of return based

upon its risk to the investor. Assuming the evaluator has taken

into account the age of the business, the skill of the

professional, and the other variables necessary to determine its

value, business goodwill must be teased out of the mix. One

commentator has called this the most difficult problem in the

entire valuation process.

If a capitalization of excess earnings method is used, the basic

analysis continues. First, the income stream must be carefully

defined. Thus, if the doctor’s Porsche is being paid as a

company expense, out it goes and the earnings returned to the

business.16 This process is called normalization. Once they are

properly adjusted, earnings are historically reviewed for the last

one to five year period. Obviously, then, the greater the

earnings history, the higher the probability for better future

earnings probability. Reasonable compensation for the

practitioner is calculated and then removed from the earnings.

(Continued on page 15)

J A N U A R Y F E B R U A R Y 2 0 1 6 L A W N O T E S V O L . X , I S S U E I P A G E 1 0

MATRIMONIAL AND FAMILY LAW UPDATE KEVIN L. O’BRIEN, ESQ.

Mr. O'Brien limits his practice to matrimonial matters, including all aspects of family law. His experience has encompassed litigation and meeting client needs from St. Lawrence County to Suffolk County. The Office's client base extends to all parts of New York, other states, as well foreign countries. His proficiency, however, extends beyond the boundaries of the courtroom. The basics matter. Client courtesy, timely returned telephone calls,

and realistic case assessments and costs, are fundamental to those in the midst of a family crisis. Clients should expect to hear sound legal advice based upon the specifics of their situation, not simply what they want to hear, or what their friends tell them. The resulting trust established between attorney and client forms the basis of a team approach toward reaching the client’s objectives. These may be litigated or negotiated. No matter what the approach, Mr. O’Brien will aggressively pursue either to advance the client's goal.

the Boy Scouts of America ($442,900), the Attorney General of

Guam ($105,286) and Sheldon Silver ($121,000 plus

mesothelioma fees). Presto chango, our judges deserve the

moolah. Who doesn’t?

By 2018, absent a cost of living increase or an increase in

federal judicial salaries, a New York State Supreme Judge will

be paid $203,100 per year plus health insurance and retirement.

According to the Bureau of Labor Statistics, the mean annual

salary of a lawyer in the Albany-Schenectady-Troy area is

$113,070. Glens Falls? $75,200. Wonder what it would be if

“adjusted for cost of living”? Underpaid, indeed.

In 2011, a Supreme Court or a Court of Claims Judge in New

York was paid $136,700 plus benefits. By my calculation, in

seven years they will receive a minimum increase of over 48%,

not adjusted for inflation, of course.

The Commission’s report is addressed to Governor Cuomo,

the Speaker of the Assembly, the Senate Majority leader and

Judge Lippman, none of whom need do anything and the

recommendation goes into effect. Aside from Judge Lippman,

do any of them really care? Having devised the system of

never voting on this recommendation and putting in place its

inclusion in our budget like it or not, I doubt it. All they have

to do is ignore the report and its skewed information and you all

pay the price. “Did I vote for that? Certainly not.” The

Legislature just put the process together so they could deny

fleecing the public, and besides, even if they read the report and

Judge Marks’ recommendations and appendix, they’d have no

idea how the final annual cost was calculated. Sometimes it’s

better to live in a fiscally responsible Golden State, although it

is tough to beat the climate in Albany.

(Continued from page 5)

principle do change. They are whatever the needs of life in a

developing civilization require them to be”.

(Continued from page 2)

TORTS AND CIVIL PRACTICE, CONTINUED...

THE SHELL GAME, CONTINUED...

J A N U A R Y F E B R U A R Y 2 0 1 6 L A W N O T E S V O L . X , I S S U E I P A G E 1 1

in a catch all category with other less serious crimes. The cases

will be uploaded by local law enforcement and will be placed

into one of four categories: animal neglect, organized abuse

(dog fighting rings for example), torture and animal sex abuse.

———————————

TENNESSEE CREATES STATEWIDE ANIMAL ABUSE

REGISTRY

———————————

Tennessee has a brand new Animal Abuse Registry on a state

website that will list the names and addresses of anyone

convicted of animal abuse. Legislation requiring similar

registries closer to us is being proposed in Pennsylvania and in

Erie County, NY.

(Continued from page 8)

ANIMAL CASE LAW UPDATE, CONTINUED...

———————————

SEAWORLD SUES OVER ORCA BREEDING BAN IN

CALIFORNIA

———————————

SeaWorld Entertainment is suing the California Coastal

Commission over a ban on breeding killer whales at its San

Diego theme park. The ban was part of the commission's

approval of a permit in October to allow the embattled theme

park chain to expand its killer whale exhibit. SeaWorld

announced a week later it would fight the ruling.

The theme park argued the commission doesn't have

jurisdiction over the welfare of animals and being unable to

breed killer whales in captivity would inevitably end the killer

whale shows, a victory the park is unwilling to concede to

animal rights activists.

"The coastal commission has neither the legal jurisdiction

nor, accordingly, the expertise, to dictate the care, feeding or

breeding of animals held solely in captivity under human care,"

the suit stated.

Called the Blue World Project, the proposal would replace the

park's current 1.7 million-gallon killer whale facility with a

450,000 pool and 5.2-million gallon tank. SeaWorld's CEO Joel

Manby told investors the Blue World project could be

postponed indefinitely due to the commission's ruling and to

declining attendance at its theme parks since the 2013

documentary Blackfish accused SeaWorld of animal abuse.

1Manatee County v. Gartenberg, Case No. 2015-CA-003844,

12th Judicial Circuit (Manatee County, FL).

———————————

EDWARD M. CONNELL AND JONATHAN E. HANSEN

ELECTED TO COUNSEL

———————————

Carter Conboy is pleased to

announce that two of the firm’s

senior associates have been

promoted. Edward M. Connell and

Jonathan E. Hansen have been

elected as Counsel at the firm

effective January 1, 2016.

Edward M. Connell joined Carter

Conboy in 2006. As Counsel, Mr.

Connell will continue to deliver his

creative and strategic experience to

his clients, including mortgage lenders and servicers, business

owners, collection firms, and other creditors in the collection of

debts and recovery of loan collateral in matters involving

creditors’ rights, bankruptcy, commercial litigation and

residential and commercial real property transactions. Mr.

Connell is a 2000 graduate of Albany Law School. He is a

member of Saratoga Springs Preservation Foundation.

Jonathan E. Hansen joined Carter Conboy in 2009. Mr.

Hansen is an experienced litigator who will continue to

represent his clients, including individuals, retailers,

contractors, and the professions, in matters involving personal

and premises liability, motor vehicle accidents, construction

and labor law, and environmental law.

He is a 2007 magna cum laude graduate

of Albany Law School. Mr. Hansen is

on the Board of Directors and is Board

Secretary of Albany Pro Musica.

“We are extremely proud to promote

Ed and Jon to counsel,” said Michael J.

Catalfimo, Managing Director and

Chief Operating Officer at Carter

Conboy. “Their promotions reflect our

deep appreciation for the hard work,

commitment and outstanding accomplishments that have made

each of them a valuable asset to their clients, colleagues and the

firm. We look forward to their continued success.”

———————————

MACKENZIE C. MONACO AND ADAM H. COOPER ELECTED

SHAREHOLDERS

———————————

Carter Conboy is pleased to

announce that attorneys Mackenzie C.

Monaco and Adam H. Cooper have

been elected Shareholders of the firm

effective January 1, 2016.

“Mackenzie and Adam have each

demonstrated outstanding leadership,

superior professional skills in their

practice areas and a commitment to

providing excellent client service,” said

Michael J. Catalfimo, Managing Director and Chief Operating

Officer at Carter Conboy. “We are extremely proud of their

many accomplishments and delighted to welcome them as

Shareholders of the Firm.”

Adam H. Cooper is a litigation attorney who represents

healthcare professionals, nursing homes and assisted living

facilities, as well as pharmacies, commercial retailers, industrial

manufacturers, food producers and processors in claims related

to medical malpractice, product liability, food law and liability,

professional liability, and personal and premises liability. He is

a Martindale-Hubbell AV™ Preeminent rated attorney and a

named SuperLawyer®. He is past-president of the Defense

Research Institute of Northeastern, New

York, past-president of the Federation

of Bar Associations for the Fourth

Judicial District, and co-chair of

Leadership Tech Valley.

Mackenzie C. Monaco is a litigation

attorney who represents individuals,

contractors, commercial retailers, and

healthcare professionals and facilities,

in claims related to construction,

environmental law, product liability,

personal and premises liability, and professional liability, as

well as representing clients with trusts and estates matters. Ms.

Monaco is a named SuperLawyer®. She is a member of the

Committee on Character and Fitness for the Appellate Division,

Third Judicial Department and is the President of the Capital

District Trial Lawyers Association.

PRESS RELEASES

ABOUT CARTER CONBOY CARTER CONBOY IS A MARTINDALE-HUBBELL AV® PREEMINENT™ PEER RATED FULL-SERVICE LAW FIRM COMMITTED TO PROVIDING THE HIGHEST QUALITY LEGAL REPRESENTATION TO ITS CLIENTS. FOUNDED IN 1920, CARTER CONBOY HAS

OFFICES IN ALBANY AND SARATOGA SPRINGS, NEW YORK, SERVING CLIENTS THROUGHOUT NEW YORK, MASSACHUSETTS, CONNECTICUT, THE DISTRICT OF COLUMBIA, NEW JERSEY, NEW HAMPSHIRE, AND FLORIDA. FOR

ADDITIONAL INFORMATION ABOUT THE FIRM, VISIT WWW.CARTERCONBOY.COM OR CONTACT THE FIRM’S DIRECTOR OF MARKETING, STACY A. SMITH, AT 518-810-0516 OR SSMITH@CARTERCONBOY.COM.

J A N U A R Y F E B R U A R Y 2 0 1 6 L A W N O T E S V O L . X , I S S U E I P A G E 1 2

Edward Connell, Esq.

Jon Hansen, Esq. Adam Cooper, Esq.

M. Monaco, Esq.

———————————

E. STEWART JONES HACKER MURPHY LAW FIRM

PROMOTES THREE TO PARTNER

———————————

TROY – The E. Stewart Jones Hacker Murphy Law Firm is

proud to announce the promotion of three attorneys to the

position of partner. Ryan M. Finn, Thomas J. Higgs and James

C. Knox each boast successful careers spanning diverse areas of

litigation. “This is an important piece of our

continued growth at E. Stewart Jones Hacker

Murphy,” said James E. Hacker, Managing

Partner. “Ryan, Thomas and James have been

integral to our success, and these new roles

illustrate just how valuable they are to our

firm.”

Having developed a reputation as one of the

more creative and effective attorneys in

Upstate New York, Ryan Finn delivers the

highest level of personal service to his clients. Mr. Finn has

been honored as a Top 10 Personal Injury Attorney Under the

age of 40 in New York State. Mr. Finn has also been

consistently honored as a Super Lawyer in the fields of Labor

and Employment; Business Litigation; and Personal Injury. Mr.

Finn is a graduate of Albany Law School, where he was the

Salutatorian of his class, and Siena College.

Thomas J. Higgs is a civil litigator with

extensive experience in complex business

litigation who has achieved successful

results for his clients in both Federal and

State Courts. Mr. Higgs also focuses on

personal injury litigation and appellate

work having argued before the Appellate

Division, Third and Second Departments,

and the United States Court of Appeals for

the Second Circuit. In 2015, Mr. Higgs was

(Continued on page 14)

PRESS RELEASES

ABOUT E. STEWART JONES HACKER MURPHY: THE JANUARY 2015 MERGER OF THE E. STEWART JONES AND HACKER MURPHY LAW FIRMS CREATED AN ENTITY WITH A COMBINED 134-YEAR TRACK RECORD OF SUCCESS IN THE UPSTATE NEW YORK LEGAL COMMUNITY. WITH OFFICES IN ALBANY, TROY, LATHAM AND SARATOGA SPRINGS, THE FIRM’S 15

ATTORNEYS OFFER UNPARALLELED LEGAL COUNSEL IN THE AREAS OF COMMERCIAL LITIGATION, PROPERTY TAX DISPUTE, CRIMINAL DEFENSE AND PERSONAL INJURY LAW. FOR MORE INFORMATION, VISIT WWW.JONESHACKER.COM.

J A N U A R Y F E B R U A R Y 2 0 1 6 L A W N O T E S V O L . X , I S S U E I P A G E 1 3

T. Higgs, Esq.

———————————

ATTORNEY PAUL PELAGALLI JOINS O’CONNELL AND

ARONOWITZ

——————————— ALBANY, NY (01/19/16) -- Albany law firm O’Connell and

Aronowitz announced that attorney Paul Pelagalli has joined

the 90-year old firm as Of Counsel. Pelagalli brings significant

litigation, family and criminal law experience to O’Connell and

Aronowitz and will be based in the firm’s Saratoga office.

Formerly in solo practice in Saratoga County, Pelagalli focused

on litigation as well as matrimonial and family law, municipal

representation including environmental issues, and commercial

litigation.

An Assistant District Attorney in Saratoga County since 2011,

Paul was responsible for prosecution of vehicle and traffic and

penal law violations. He was Assistant County Attorney from

2001-2010 serving as Attorney for the

Foster Care Unit of the Department of

Social Services, and also Assistant

Public Defender from 1995-2001.

Deputy Town Attorney for Clifton

Park since 1992, Paul was also Counsel

to the town's Planning Board

representing the Town in various matters

including zoning, planning, legislation,

tax certiorari proceedings and contractual

agreements.

“We are pleased to welcome Paul

Pelagalli and add his wealth of

knowledge and experience to our firm,”

said Jeffrey J. Sherrin, President of

O’Connell and Aronowitz. “Our firm has made a strong

(Continued on page 14)

O'CONNELL AND ARONOWITZ IS ONE OF THE CAPITAL DISTRICT'S LARGEST AND MOST DIVERSE LAW FIRMS. WITH 38 ATTORNEYS AND OFFICES IN ALBANY, LATHAM, NEW YORK CITY, PLATTSBURGH AND SARATOGA SPRINGS, THE FIRM PROVIDES A BROAD RANGE OF LEGAL SERVICES TO BUSINESSES AND INDIVIDUALS THROUGHOUT THE STATE. FOR

MORE INFORMATION, PLEASE CONTACT JEFFREY J. SHERRIN (JSHERRIN@OALAW.COM) OR BY PHONE AT (518) 462-5601. MR. PELAGALLI (PPELAGALLI@OALAW.COM) CAN BE REACHED IN OUR SARATOGA OFFICE (518) 584-5205. VISIT US

Paul Pelagalli, Esq.

Ryan Finn, Esq.

selected by his peers as an Upstate New York Super Lawyer.

Mr. Higgs is a graduate of Albany Law School, where he was a

member of Law Review and served as the research assistant to

the late David D. Siegel, and Colgate University.

An accomplished litigator, James C.

Knox has earned a reputation of

excellence. Although his practice is

focused on personal injury litigation

and criminal defense, Mr. Knox has an

active appellate practice, having argued

before the Appellate Division, Third

Department, the New York State Court

of Appeals and the United States Court

of Appeals for the Second Circuit. Mr.

Knox has been recognized as a “Rising

Star” by Super Lawyers every year

since 2013, an honor bestowed upon

just 2.5% of attorneys in New York

State. A graduate of Lewis & Clark

Law School, Mr. Knox achieves top

results for his clients in State and Federal Courts and is well

known for the personal dedication he invests in each client and

every case.

The appointment of these three new partners ushers in the

next chapter for the prestigious E. Stewart Jones Hacker

Murphy Law firm. The firm continues to be committed to

growing and continuing to serve its clients across New York

State.

(Continued from page 13)

James C. Knox, Esq.

commitment to Saratoga County and adding Paul Pelagalli to

our Saratoga legal team greatly enhances our ability to provide

a full range of services to Saratoga businesses and residents.”

Giving back to the legal community, Paul serves on the

Committees on Character and Fitness for the Third and Fourth

Judicial Districts of the Appellate Division, Third Department,

the final step for candidates prior admission to New York State

Bar. Paul is a graduate of Albany Law School and also holds an

M.S. in Criminal Justice from University at Albany. He is a

member of the New York State Bar Association, New York

State Trial Lawyers Association, Saratoga County Bar

Association, and Capital District Trial Lawyers Association.

(Continued from page 13)

JONES, HACKER, MURPHY, CONTINUED...

O’CONNELL & ARONOWITZ, CONTINUED...

tone down the inflammatory rhetoric and educate ourselves as

to what’s really going on here. Pure politics. Just a thought. 1The narrator goes on to say that Mr. Trump will “stop illegal

immigration by building a wall on our southern border that

Mexico will pay for.” I’ll save my commentary on this one for

another day. 2U.S. Const. amend. V. 3Kwong Hai Chew v. Colding, 344 U.S. 590, 598 n.5 (1953). 4See Verdugo-Urquidez v. United States, 494 U.S. 259, 270-71

(1990) (“[A]liens receive constitutional protections when they

have come within the territory of the United States and

developed substantial connections with this country.”).

However, aliens who are outside the United States are generally

not afforded this constitutional protection. Id. at 269 (“[W]e

have rejected the claim that aliens are entitled to Fifth

Amendment rights outside the sovereign territory of the United

States.”) But see Ibrahim v. Department of Homeland Security,

669 F.3d 983, 997 (9th Cir. 2012) (an alien not currently in the

country, but who had been lawfully present in the United States

for four years before departing the country and who was latter

prevented from returning, had established a “significant

voluntary connection” to the United States sufficient to assert

claims under both the First and Fifth Amendments). 5Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). 6Bolling v. Sharpe, 347 U.S. 497 (1954).

(Continued from page 6)

IMMIGRATION, CONTINUED...

J A N U A R Y F E B R U A R Y 2 0 1 6 L A W N O T E S V O L . X , I S S U E I P A G E 1 4

J A N U A R Y F E B R U A R Y 2 0 1 6 L A W N O T E S V O L . X , I S S U E I P A G E 1 5

This provides a financial yardstick as to what it would cost to

replace the practitioner’s services. Excess earnings are then

calculated and deemed to exist if the practitioner is receiving

more financial compensation than his counterpart.17 This is the

area wherefrom goodwill emerges. This may appear simple,

but it is not.18

1Donna Tumminio, Note, Breaking Down Business Valuation:

The Use of Court-Appointed Business Appraisers in Divorce

Actions, 44 Fam. Ct. Rev. 623, 625 (2006). 2For purposes of avoiding technical accounting issues that are

somewhat collateral to this paper, assumptions are being made

that proper discovery has been had and each side has acted in

good faith regarding disclosure to the expert. It is also assumed

the business has historical earnings to review, that proper

normalization has occurred, tax impacting is reasonable, etc. 3Rev. Rul. 68-609, 1968-2 C.B. 327; Rev. Rul. 65-193, 1965-2

C.B. 370; Rev. Rul. 77-287, 1977-2 C.B. 319; Rev. Rul. 80-

213, 1980-2 C.B. 101; Rev. Rul.83-120, 1983-2 C.B. 170; Rev.

Rul. 93-12, 1993 C.B. 202; Rev. Rul. 81-253, 1981-2 C.B.

187; Rev. Rul. 98-34, 1998-2 C.B. 118; as more fully set forth

in Patrice Leigh Ferguson & John E. Camp, Valuation Basics

and Beyond: Tackling Areas of Controversy, 35 Fam. L.Q. at

346-347; this area is an alphabet soup of terms and definitions

foreign to most outside of accounting. Therefore, see Fishman,

et al., Guild to Business Valuations (Practitioners Pub. Co.,

2002); S.P. Pratt, What is Value, Defining the Terms in the

Valuation of a Business, 17 FAM. ADVOC. 28 (1995); more

limited methods are asset-based approach, market approach,

excess earnings approach, capitalization of dividends,

discounted future cash flows, and rule of thumb. John R.

Johnson, Valuation Issues, 32 PLI/NY at 394. 4Capitalization rate is defined as “any divisor used to convert

anticipated benefits into Value.” Patrice Leigh Ferguson &

John E. Camp, Valuation Basics and Beyond, supra at 312;

John R. Johnson, Valuation Issues, 32 PLI/NY at 396-397;

although a strong proponent of O’Brien, Johnson also notes

that not only is the process subject, and speculative, but

applying the correct capitalization rate is the most important,

and the most speculative of all, akin to an art form; Id. at 423.

Has equity come down to a roll of the dice to see who gets it

right? 5Harriet N. Cohen & Patricia Hennessey, Valuation of Property

in Marital Dissolutions, 23 Fam. L.Q. 339- 340 (1989). 6John R. Johnson, Valuation Issues, 32 PLI/NY at 378. 7Richard E. Poley, Valuing Business Goodwill in a Divorce, 26

COLO. LAW. 53, 53 (1997). 8Laurence J. Cutler & Samuel V. Schoonmaker, IV, Division

and Valuation of Speculative Assets: Reasoned Adjudication or

Courthouse Confusion?, 15 J. AM. ACAD. MATRIM. LAW. 257

(1998). 9John R. Johnson, Valuation Issues, 32 PLI/NY at 378-379; see

Rev. Rul. 59-60, 1 C.B. 237, which states factors that contribute

to the existence of intangible value: “(1) prestige and renown of

the business; (2) ownership of a brand or trade name; and (3) a

record of successful operation over a prolonged period in a

(Continued from page 10)

MATRIMONIAL UPDATE, CONTINUED...

particular locality.” 10S. Nasar, A Beautiful Mind, 104-120 (1998); Nash’s theory of

maximization stated succinctly: (µ1-BATNA1)⋅(µ2-

BATNA2). 11This assumption is based upon an economic model that

consumers act rationally when they purchase goods and

services. See Yablon, The Meaning Of Probability Judgments:

An Essay On The Use And Misuse Of Behavioral Economics,

2004 U. ILL. L. REV. 899, 902, 953-955 (2001). 12Donna Laikind, The Psychology of Money in Marriage, 5

N.Y. FAM. L. 1 (2004). 13Shannon Pratt, et al, Valuing Small Businesses and

Professional Practices, 212 (3d. Ed. 1998); Jessica K. Gartland,

Valuation of Professional Practices, 35 NYSBA FAM. L. REV.

4, 5 (2003). 14John R. Johnson, Valuation Issues, supra at 401, 423. 15Randall B. Wilhite, The Effect of Goodwill in Determining

the Value of a Business in a Divorce, 35 FAM. L.Q. 351, 372

(2001). 16Id.; Method of choice by many New York Courts. See, Lew

v. Lew, 289 A.D.2d 538 (2d Dept. 2001); I represented the

doctor. Naturally, he never told me about this until I reviewed

the preliminary draft of the valuation. The vehicle cost in

excess of $120,000.00 and was being written off as an expense

to the tune of several thousand per month. Among other things,

the family groceries were always going though the business;

Shannon Pratt, et al, Valuing Small Businesses and Professional

Practices, at 214-227; see also, Nehorayoff v. Nehorayoff, 108

Misc. 2d 311, 316-320 (Sup. Ct., Nassau County, 1981);

Shannon Pratt Valuing A Business And The Analysis And

Appraisal OF Closely Held Companies, 28, 57-58 (1981). 17Shannon Pratt, et al, Valuing Small Businesses and

Professional Practices, at 220-227 18Alan S. Zipp, Divorce Valuation of Business Interests: A

Capitalization of Earnings Approach, 23 FAM. L.Q. 89, 92-93

1989); Alicia Brokars Kelly, Sharing a Piece of the Future Post-

Divorce: Toward a More Equitable Distribution of Professional

Goodwill, 51 RUTGERS L.REV. 569, 620 (1999).

The Federation of Bar Associations of the 4th Judicial District is pleased to announce that we have scheduled

our Annual Meeting/CLE which will again be held in Montreal. This year's Meeting and CLE will take place April 29-30TH, 2016, and will include a half day CLE program with various speakers and topics, including Professor Pat Connors, Professor Mike Hutter, and Monica Duffy, Chief Attorney for the Committee on

Professional Standards. Please mark your calendars so as not to miss this Event!

Further details, along with the Registration Form and

Agenda, will be forthcoming.

SAVE THE DATE

It is with great sadness that we report the death of the Hon. J.

Timothy Breen. Judge Breen's many years of service to the

Warren County Family Court, to our Association and to the

community at large are exemplary. He will be greatly missed.

QUEENSBURY-Honorable J. Timothy Breen, 67, born on

July 12, 1948, died on Wednesday, January 20, 2016 at Glens

Falls Hospital after a courageous fight with Acute Myeloid

Leukemia.

He was the son of the late John Timothy Breen and Mary

Finn Breen; grandson of the late Jeremiah David Breen and

Julia Buckley Breen; Daniel J. Finn Esq. and Nellie

Cunningham Finn.

The Judge served proudly as the President of the Class of

1966 at Saint Mary’s Academy and looked forward to his 50th

reunion in September. He received his Bachelor of Arts Degree

with Departmental Honors from Le Moyne College in

Syracuse, in 1970 and his Juris Doctor Degree from Union

University; Albany Law School and was admitted to practice

before the courts of the State of New York; the Federal Courts

of the Northern District of New York and the United States

Supreme Court.

Judge Breen commenced his legal career with the firm of

Little and O’Connor and was one of the first appointed Support

Magistrates in 1995 by the Office of Court Administration.

He thereupon was appointed by Governor George Pataki in

June of 1999 as Warren County Family Court Judge and ran for

two subsequent terms to become the longest sitting Family

Court Judge in Warren County history.

The Judge was appointed in 2002 to serve as acting Supreme

Court Justice who presided over matrimonial and divorce

actions.

He was honorably discharged from the US Army Reserve

having served for six years.

Tim belonged to many

organizations including the NYS

Bar Association; Warren County

Bar Association; NYS Family

Court Judicial Association, where

he served as a delegate to the 4th

Judicial District. He proudly

served as a trustee of the Hyde

Collection; Director of the

Conkling Center; Director of the

Glen at Highland Meadows; and was a member of the Chapman

Historical Museum; the Fort House Museum; and the Feeder

Canal Alliance. Beside his parents he was predeceased also by

his brother, Daniel Patrick Breen. He is survived by his

husband, Michael D. Gleason; his sisters, Johanna (Joseph) Bak

and Mary Ellen (Frederick) Field. Also survived by two

nephews, Jeffrey David (Karyn) Bak and Todd Timothy (Sera)

Oliver, ESQ; two nieces, Amy (Thomas) McCurry and Carolyn

(James) Bossinas; also sisters-in-law Nancy (Paul)

Groenwegen, Linda (Paul) Michaud and Elaine Gleason (Colin)

Dermody. He leaves a great many friends and will be

remembered as a gracious host and an avid gardener.

Interment will take place at St. Mary’s Cemetery in the

spring.

The family wishes to thank Dana Farber, Brigham and

Women’s Hospital of Boston and the staff of the Glens Falls

Hospital for their kindness and care. Contributions in Tim’s

memory may be made to St. Mary’s /St. Alphonsus School, 10-

12 Church St., Glens Falls, NY 12801 or The Hyde Collection,

161 Warren Street, Glens Falls, NY 12801.

IN MEMORIAM: HON. J. TIMOTHY BREEN

J A N U A R Y F E B R U A R Y 2 0 1 6 L A W N O T E S V O L . X , I S S U E I P A G E 1 6

James H. Glavin III, a lifelong resident of

Waterford and practicing lawyer for over half a

century, died Saturday, January 2, 2016, at his

residence. He is survived by A. Rita Chandellier

Glavin, his wife of 52 years. A graduate of

Waterford High School, he was a cum laude

graduate of Villanova University and received his

juris doctorate from Albany Law School. Upon his admission

to the Bar he enlisted in the U.S. Air Force where he served as

assistant staff judge advocate for three years with the 839th Air

Division of the Tactical Air Command based in Tennessee.

Assigned as military judicial officer, he was primarily involved

in investigations and court martial trials. He also handled

matters in aviation accidents in the mid-South. In 1959, he was

the judge advocate assigned to investigate a mid-air collision of

a B-52 Bomber and a tanker aerially refueling the bomber over

Kentucky. The same year he was assigned to an unusual

accident involving a C-130 transport. He often referred to his

time in the Air Force as his formative legal experience. When

his active duty was complete, he served in the Air Force

Reserve and was designated by the judge advocate general as

regional representative. Upon his honorable discharge from the

Air Force, he forewent opportunities in large law firms in

Nashville, Albany, New York City and Binghamton to return to

his home town of Waterford where he joined his father in the

Glavin & Glavin Law office in Waterford. His wife, Rita, later

joined them in their law practice. He was admitted to the Bar of

the U.S. Supreme Court, and was a member of the New York

State, Albany, Saratoga and Rensselaer County Bar

Associations. He served as chairman for the New York State

Bar Association's Administrative Law Practice Committee. He

was also a member of many professional associations, including

the American Trial Lawyers, New York State Trial Lawyers,

American Hospitals, National Academy of Elder Law

Attorneys, Transportation Lawyers and the Federal Bar

Association of the Northern District of New York. In 2008 he

was honored by the federal judges of the Northern District of

New York for his performance. He was a member of the

Association of Former Intelligence Officers and the Air Force

Association. He served as chairman of Key Bank's regional

board and served for over two decades on the board of Bellevue

Women's Hospital. He was a trustee and lector of St. Mary of

the Assumption Church in Waterford for over 40 years, and a

(Continued on page 17)

IN MEMORIAM: JAMES H. GLAVIN, III, ESQ.

———————————

SEEKING ASSISTANT COUNTY ATTORNEY

———————————

The Warren County Attorney seeks to appoint an Assistant

County Attorney whose responsibilities include case

management, prosecution and defense of civil actions and

proceedings brought by and behalf of Warren County. The

Assistant County Attorney may also be responsible for drafting

and reviewing contracts on behalf of the County as well as

providing advice and counsel to various County departments.

The successful candidate is appointed by the County Attorney

and serves at his discretion. The Assistant County Attorney

must be a resident of Warren County at the time of

appointment. MINIMUM QUALIFICATIONS: Admission to

the Bar in the State of New York and two years of full time

paid experience as a practicing attorney handling litigation

matters before the Courts of the State of New York. SALARY :

$70,000 plus full benefits CANDIDATES SHOULD SEND

COMPLETED WARREN COUNTY APPLICATION,

RESUME AND LETTER OF INTENT TO: Warren County

Attorney’s Office 1340 State Route 9 Lake George, New York

(Continued on page 19)

———————————

DANIEL W. COFFEY TAKES LEADERSHIP OF THE

ALBANY COUNTY BAR ASSOCIATION

———————————

Albany, NY…the Albany County Bar Association

(ACBA) held its Annual Meeting and Swearing In

Ceremony at the Albany County Courthouse

Tuesday, January 12, 2016. Daniel W. Coffey, a

founding partner at Bowitch & Coffey, LCC, was

officially sworn-in as President, a role that he will hold for one

year. Coffey is a trial attorney with over 20-years experience in

courts ranging from NYS Supreme Court, the Court of Claims,

the Appellate Division and the Court of Appeals, among many

local city courts. He has litigated numerous cases to verdict in

local, state and federal courts throughout New York State as

well as Vermont and New Hampshire District Courts. His

primary areas of practice are: insurance first-party, third-party

and subrogation with additional practice in the areas of

insurance agency E&O, commercial litigation, environmental

litigation and municipal/zoning/planning law.

“I’ve been a member of the Albany County Bar Association

(ACBA) since the early 1990s, shortly after I began practicing

law in downtown Albany,” said Coffey. “Immediately brought

into the fold by the membership community, I assisted in

organizing the first Law Day Run in 1994 and I have been an

active participant ever since. The ACBA membership has

afforded me the opportunity to interact and socialize with

fellow Albany County lawyers and judges, while at the same

time, give back to our community and improve the image of

attorneys by taking pro-bono clients. It has been my personal

experience that the cost of membership (less than one billable

hour) has unlimited benefits and value for my firm, my career

and my personal pursuits.”

A graduate of Georgetown Law, Coffey is an active

member of the Albany County Bar Association, the

Defense Research Institute of NENY, Capital District

Trial Lawyers Association, New York State Bar

Association, National Association of Subrogation

Professionals (NASP), International Association of

Arson Investigators (IAA), to name just a few.

He is the Chairman of the Bethlehem Zoning Board

of Appeals (2010 – Present) and a Bethlehem Youth Court

volunteer. Coffey is also a versed speaker and author.

The Officers sworn-in were:

President-Elect: James E. Hacker of E. Stewart Jones

Hacker Murphy, LLP

Vice-President: Hon. Christina L. Ryba, NYS Supreme

Court

(Continued on page 18)

PRESS RELEASES

CLASSIFIEDS

J A N U A R Y F E B R U A R Y 2 0 1 6 L A W N O T E S V O L . X , I S S U E I P A G E 1 7

longtime board member of the St. Mary's School. He served as

an attorney for the Town of Waterford and for over 45 years as

counsel for the Waterford Water Commissioners. He was a

Fourth Degree Knight of Waterford Council 237 of the Knights

of Columbus. He was former president and an over 50-year

member of the Waterford Lions Club. In 1989, he was

recognized as a Patroon of the Village of Waterford. A lifelong

Democrat, he was chairman of the Saratoga County Democratic

Committee, chairman of the Fourth Judicial District of the

Democratic Party for the State of New York for over 25 years,

and he served on the Judicial Selection Committee of the State

Democratic Party. He is predeceased by his father, Judge

James H. Glavin Jr.; his mother, Elizabeth Gibbons Glavin; and

a sister, Mary Evelyn Glavin. In addition to his wife, he is

survived by their four children, Helene Elizabeth Clinton,

James Chandellier Glavin, Rita Marie Glavin and James Henry

Glavin IV; and his four grandchildren, Joseph, Patrick and

Caroline Clinton and Maria Glavin. Those who wish may make

memorial contributions to St. Mary of the Assumption Church

Restoration Fund in care of the Philip J. Brendese Funeral

Home, 133 Broad St., Waterford, NY 12188.

(Continued from page 16)

IN MEMORIAM: J. GLAVIN, III, CONTINUED

Treasurer: Daniel J. Hurteau of Nixon Peabody

Secretary: Michael P. McDermott of O’Connell &

Aronowitz

Immediate Past President: Janet M. Silver of Hinman

Straub, P.C.

The Board of Directors sworn-in were:

Douglas R. Kemp of the NYS Attorney General’s Office

Matthew P. Barry of McNamee, Lochner, Titus &

Williams, P.C.

Hon. Ryan T. Donovan of Harris, Conway & Donovan,

PLLC

Elizabeth J. Grogan of Wilson, Elser, Moskobitz, Edlerman

& Dicker, LLP

William T. Little, Jr. of Teresi & Little, PLLC

Lisa R. Harris, Senior Counsel, New York State Senate

Majority Conference

Founded in 1900, ACBA has more than 1,100 members,

making it one of the largest and most active upstate bar

associations in the state. The purpose of ACBA is to promote

professional collegiality among the bench and bar; facilitate

public service and access to justice for all; offer programs,

benefits and services to enhance the skills of its members; and

to provide legal services throughout the Capital Region for

those in need both inside and out of the courtroom. Learn more

| albanycountybar.com

(Continued from page 17)

February 25, 2016 - Thursday

Bar Dinner at The Wishing Well, Wilton

March 31, 2016 - Thursday

TRIVIA NIGHT - Vapor Night Club

April 20, 2016 - Wednesday

Board of Directors Meeting - Third Floor,

City Hall, Saratoga Springs

May 2, 2016 - Monday

Law Day Luncheon @ The Canfield Casino

June 2, 2016 - Thursday (TBA)

Installation Dinner - TBD

ALBANY COUNTY BAR , CONTINUED

J A N U A R Y F E B R U A R Y 2 0 1 6 L A W N O T E S V O L . X , I S S U E I P A G E 1 8

SCBA CALENDAR OF EVENTS

February 25, 2016 The Wishing Well Restaurant

745 Saratoga Road, Gansevoort 6:00 p.m. - Social Hour with Hors d'oeuvres

7:00 p.m. - Dinner

PASSED HORS D'OEUVRES Pigs in a Blanket, mustard

Boneless Panko Crusted Chicken Bites, spicy aioli Fried Pickles, horseradish cream

Smoked Salmon Toast

Assorted cheeses, seasonal vegetables Salad

Cream of Mushroom Soup

ENTRÉE Center Cut New York Strip Steak, onions and peppers Blackened Faroe Islands Salmon, dill cucumber relish

Sautéed Chicken Piccata, capers, lemon Winter Vegetable Risotto

DESSERT

Raspberry Pie

$38 per person

Please make your reservations by Monday, February 22 by calling 280-1974 or via e-mail: pclute@saratogacountybar.org

FEBRUARY SCBA DINNER

DONNELLAN & KNUSSMAN IS PARTICIPATING IN THE SARATOGA

COUNTY CHAMBER OF COMMERCE LEAP OF KINDNESS DAY ON FEBRUARY 29 BY

COLLECTING NON-PERISHABLE FOOD ITEMS FOR A LOCAL FOOD PANTRY THROUGHOUT THE MONTH OF FEBRUARY. WE INVITE YOU

TO JOIN US BY DROPPING OFF CANNED GOODS OR OTHER NON-PERISHABLES AT

OUR OFFICE LOCATED IN THE MALTA PROFESSIONAL BUILDING AT 658 MALTA

AVENUE SUITE 201, MALTA. ON FEBRUARY 29 WE WILL DELIVER THE

COLLECTED FOOD TO THE EOC FOOD PANTRY ON BATH STREET IN BALLSTON

SPA.

President M. Elizabeth Coreno

Vice President

Matthew R. Coseo

Treasurer Joseph C. Berger

Secretary

Nancy Sciocchetti

Immediate Past President Karen E.S. D’Andrea

Board of Directors Joseph C. Berger

Brian H. Breedlove Hon. Loren N. Brown Matthew L. Chivers* M. Elizabeth Coreno Matthew R. Coseo

James S. Cox* Kimberly A. Crocetta Karen E.S. D’Andrea* James H. Densmore

Hon. James E. D. Doern* Hon. Robert F. Doran Stephen M. Dorsey

Stephanie W. Ferradino* Hon. A. Rita C. Glavin*

Karen A. Heggen* Stuart Kaufman Kyle N. Kordich* Christopher Mills

Hon. Thomas D. Nolan, Jr. Paul Pelagalli*

Scott M. Peterson Nancy Sciocchetti

Karl J. Sleight* Elena Jaffe Tastensen

State Bar Delegates

James S. Cox* Nancy Sciocchetti

Karen E.S. D’Andrea (Alt.)

*Past President of the Bar

S A R A T O G A C O U N T Y

B A R A S S O C I A T I O N

J A N U A R Y F E B R U A R Y 2 0 1 6 L A W N O T E S V O L . X , I S S U E I P A G E 1 9

12845 Warren County is an EOE/AA employer

Applications are being accepted until February

5, 2016 Applications may be obtained at:

www.warrencountyny.gov/civilservice

———————————

SEEKING LAW OFFICE ADMINISTRATIVE

PROFESSIONAL

———————————

Experienced Law Office Administrative

Professional needed for small law firm.

Minimum of 3 years of experience required.

Work involves basic office administration,

reception, secretarial, and clerical functions,

document preparation, and client billing. The

ideal candidate will be flexible, possess

excellent organizational skills as well as good

people, phone and computer/typing skills, and

an ability to prioritize tasks. Knowledge of law

office billing systems and software is a must.

Salary dependent upon experience. Please email

resume and salary requirements to

attorney3910@yahoo.com.

———————————

LEGAL SECRETARY/PARALEGAL POSITION

AVAILABLE

———————————

General practice legal secretary/paralegal

position responsibilities and requirements

include: answering phones, excellent client

contact skills, scheduling and maintaining

detailed electronic calendars, proficiency with

Microsoft Office/Outlook, drafting documents,

preparing and assembling litigation papers,

client billing and other attorney support.

Pay is based upon experience. Please email

cover letter, resume and references to:

seekingparalegal12866@gmail.com.

———————————

OFFICE SPACE AVAILABLE

———————————

Attractive, quiet, partially furnished private

office with skylight and file storage area. The

office opens to a common room with waiting

area, reception, separate conference room,

kitchenette and two other offices. Conference

room is furnished, furnished secretarial area and

waiting area. Filing space included. Vaulted

ceiling, bright, classy working environment.

Perfect for an attorney, accountant, writer or

other professional or small business. This floor

is also occupied by two attorneys part time and

is located on the upper level of an attractive

5000 sq. ft. professional building in which 11

other small businesses are located. Tenants also

include 5 psychotherapists, 2 masseuses, a

radiology practice, a chiropractor and two

(Continued from page 17) energy workers. We are 7/10 mile from

Broadway, on Route 29 (Washington Street),

three blocks from Saratoga Hospital. Excellent

off-street parking. Avoid the summer traffic and

join us. Yours for $625 a month, utilities

included. Will share equipment, copier, etc. Wi

-Fi available for nominal monthly fee. This

space is dog friendly. Contact: Sarah B. Foulke,

Esq., MBA, 229 Washington Street, Saratoga

Springs, NY 12866, (518) 583-0523 (office),

(518) 583-0783 (facsimile),

Sarah@foulkeattorney.com

———————————

SEEKING LEGAL SECRETARY/ASSISTANT

———————————

Immediate opening for experienced legal

secretary/assistant in growing matrimonial/

family law firm located in Malta, NY. Must be

detail-oriented, organized and able to multi-

task. Excellent writing and computer skills

required. Contact is:

freestone@dklawfirmny.com

———————————

SEEKING COMMERICAL LITIGATION

ASSOCIATE

———————————

McGlinchey Stafford, a nationally-recognized

business and consumer financial services

defense law firm, seeks a staff associate with

prior complex commercial litigation experience

to join our Albany office. The ideal candidate

will have 2 to 4 years of experience handling

real estate litigation, banking litigation and/or

consumer finance litigation, including contested

mortgage foreclosure litigation. Significant

experience making court appearances, attending

hearings, and arguing motions is required.

Candidates should have superior academic

credentials, strong analytical and writing skills

are required. Admission to the New York bar is

required for consideration. Compensation

commensurate with experience; full benefits

included.

Please apply through our online application

located at https://virecruit.mcglinchey.com/

viRecruitSelfApply/ReDefault.aspx?

FilterREID=2&FilterJobCategoryID=3

If you have any questions about the

application process, please contact Margeaux

Feore, Lateral Recruiting Coordinator, at

mfeore@mcglinchey.com

CLASSIFIEDS